McCLANAHAN v. PEOPLE

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Court of Appeal, First District, Division 3, California.

Robert Donald McCLANAHAN, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF MARIN, Respondent, PEOPLE of the State of California, Real Party in Interest.

A018358.

Decided: January 11, 1983

Carl B. Shapiro, Mark W. Plank, Shapiro & Shapiro, San Anselmo, for petitioner. George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, William D. Stein, Asst. Atty. Gen., Thomas A. Brady, Charles J. James, Deputy Attys. Gen., for real party in interest.

This petition challenges a trial court ruling denying petitioner's motion to suppress evidence (Penal Code section 1538.5).   It raises issues concerning the scope of a warrantless search of a vehicle driven by petitioner.   Because of differences between decisions interpreting the California Constitution and the United States Supreme Court's opinions in New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, and United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, we are constrained to consider the applicability of Proposition 8, a constitutional amendment adopted by the voters of this state at the June 8, 1982 Primary Election, to trial for crimes alleged to have been committed before adoption of the proposition.   We are of the view that Proposition 8 does apply to petitioner's trial and that under New York v. Belton, supra, and United States v. Robinson, supra, the trial court's ruling must be sustained.

On March 8, 1982, petitioner was charged by information with possession of cocaine (Health & Saf. Code, § 11350) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).  Petitioner moved to suppress evidence as the fruit of an unlawful search (Pen.Code, § 1538.5).   The motion was denied June 28, 1982, and this petition followed.

The motion to suppress was submitted on the record made at the preliminary examination.   At the preliminary examination, Officer James Reis of the Ross Police Department testified that he was patrolling at 9:20 p.m. on October 19, 1981, when he observed a car with an improper registration sticker.   He ran a warrant check and discovered that there was a “$150 misdemeanor warrant on a Mr. McClanahan.”   He stopped the car and questioned the driver, petitioner Robert D. McClanahan.   Petitioner gave the officer his correct name, but did not have his driver's license with him.   At the officer's request, petitioner searched the glove compartment for his registration.   While petitioner was doing that, the officer looked into the car with his flashlight, looking for any “alcohol or narcotics or weapons violations.”   He observed what appeared to be a six-pack of beer bottles directly to the rear of the passenger's seat.

While speaking with petitioner, Officer Reis noticed a “rather moderate odor of alcohol” about petitioner's person.   When asked, petitioner admitted he had been drinking “a little.”   The officer asked if there was any alcohol left in the bottles, but petitioner “vaguely shrugged and mumbled and didn't really reply.”   Officer Reis leaned into the car and took one of the bottles from the container.   He discovered that it was not a beer bottle, but a jar “about the size of a pickle jar.”   He then removed a second bottle and found that it also was not a beer bottle.   At the time he picked up the second bottle, he “suspected that it may not be a beer bottle, but [he] picked it up just to be sure it wasn't.”

When Officer Reis picked up the second bottle, it released weight from a wool hat and the end of a baggie inside it tipped up slightly, revealing what appeared to be a white powder.   Officer Reis removed the baggie and another baggie underneath it.   They contained cocaine and methamphetamines.

 Under decisions interpreting the California Constitution's search and seizure provision (art. I, § 13), the scope of a search is strictly limited by the circumstances which justified the search.  (See People v. Brisendine (1975) 13 Cal.3d 528, 544, fn. 12, 119 Cal.Rptr. 315, 531 P.2d 1099.)   Thus, a search reasonable in its inception can become unreasonable if the officer seizes and examines an item he has either no subjective belief or no objective reason to believe contains contraband or presents a danger to the officer.   (See, e.g., People v. Leib (1976) 16 Cal.3d 869, 876, 129 Cal.Rptr. 433, 548 P.2d 1105;  Kaplan v. Superior Court (1971) 6 Cal.3d 150, 154, 98 Cal.Rptr. 649, 491 P.2d 1;  People v. Collins (1970) 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403.)   Here, the officer's seizure of a second jar which he suspected might not be a beer bottle for the purpose of confirming the absence of alcohol, would seem to exceed the scope of a lawful search for an open container of alcohol.   An officer should believe that the seized item does contain the proscribed substance, not that it does not contain it.   The search cannot be justified by probable cause.

 Under California law, the search cannot be justified as incident to a lawful arrest on the traffic warrant either.   When arresting for a routine traffic violation, the officer cannot reasonably expect to find contraband or a weapon in the vehicle and if the offense has no “fruits” or “instrumentalities” he cannot justify a routine search on that ground.  (See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201–202, 101 Cal.Rptr. 837, 496 P.2d 1205;  People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 813–815, 91 Cal.Rptr. 729, 478 P.2d 449.)   The same reasoning applies when the arrest is made because of a bench warrant for failure to appear for a traffic offense:  “[A] defendant arrested on a warrant for a traffic offense may not be booked or searched until he has been given an opportunity to post bail.”  (People v. Collin (1973) 35 Cal.App.3d 416, 423–424, 110 Cal.Rptr. 869.)

Federal law concerning searches incident to traffic arrests is quite different from California law.   In United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the United States Supreme Court upheld a full body search of a person arrested for driving a motor vehicle with a revoked operator's permit.   The court rejected the contention that the scope of a search incident to a traffic arrest should be any different from the scope of a search incident to an arrest for another crime:  “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.”  (414 U.S. at p. 235, 94 S.Ct. at p. 476.)

Robinson dealt only with a search of the person incident to arrest.   In New York v. Belton, supra, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the United States Supreme Court applied some of Robinson's concepts to a vehicle search incident to the arrest of its occupants.   There the car was stopped for speeding, but the occupants were arrested for possessing marijuana smelled by the officer and associated with an envelope seen on the floor of the car.   The Belton court upheld search of the passenger compartment and a jacket found therein, announcing the rule that incident to a lawful custodial arrest of its occupant, an officer may search the passenger compartment of an automobile and examine the contents of any container found within it.   The Belton court borrowed liberally from Robinson in concluding that a general rule applicable to all containers in a vehicle was preferable to an individualized determination of whether search of a particular item without a warrant was proper.  (Id., at pp. 460–462, 101 S.Ct. at 2864–2865.)   We read the combination of Robinson and Belton as establishing that incident to a custodial traffic arrest any container in the passenger compartment of the vehicle may be searched.

 In this case, Officer Reis was authorized by the outstanding warrant 1 to make a custodial arrest.  (See People v. Collin, supra, 35 Cal.App.3d 416, 422, 110 Cal.Rptr. 869.)   The fact that the search preceded the arrest does not preclude a finding that it was incident to the arrest.   It is well settled that a search incident to arrest need only be substantially contemporaneous with the arrest and that indeed the search may precede the arrest.  (See Rawlings v. Kentucky (1980) 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633;  People v. Cockrell (1965) 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116;  In re Jonathan M. (1981) 117 Cal.App.3d 530, 536, 172 Cal.Rptr. 833, and cases cited therein.)   Nor does the fact that petitioner's arrest was for drug offenses compromise the validity of the search.   It is not unusual for an officer with more than one ground for arrest to articulate only the most serious offense as the reason for the arrest.   Failure to mention the outstanding warrant as the reason for the arrest did not make the search any more intrusive than it would have been had he stated that the arrest was for both the outstanding warrant and the drug violations.   We conclude that under Robinson and Belton, the search of the interior of petitioner's vehicle was a proper search incident to arrest.2

 The conclusion that different results would be reached under the two constitutions compels us to consider the applicability of the so-called “Truth in Evidence” portion of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), which provides in pertinent part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings ․”  We must determine whether this provision applies to a trial for crimes allegedly committed before its adoption.

The two arguments against application of Proposition 8 to crimes committed prior to its effective date are that (1) nothing in the measure indicates an intention that it apply retroactively, and (2) if it were to apply to crimes committed before its effective date, it would be an illegal ex post facto law.

Intention to Apply Retroactively

In DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865, the California Supreme Court restated the presumption that “no statute is to be given retroactive effect unless the Legislature has expressly so declared ․”  A similar statement has been made by the high court concerning constitutional provisions (Hopkins v. Anderson (1933) 218 Cal. 62, 66, 21 P.2d 560).   However, more recent authority has tempered the effect of the presumption:

“Although legislative enactments are generally presumed to operate prospectively and not retroactively, (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 149 [23 Cal.Rptr. 592, 373 P.2d 640] ․;  DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 176 [18 Cal.Rptr. 369, 367 P.2d 865] ․), this presumption does not defy rebuttal.   We have explicitly subordinated the presumption against the retroactive application of statutes to the transcendent canon of statutory construction that the design of the Legislature be given effect.  (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686 [91 Cal.Rptr. 585, 478 P.2d 17] ․)

“․

“In In re Estrada, supra, 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], we clothed an amendment to the Penal Code with retroactive effect despite the silence of its language on the issue and the presumption against retroactive application.   We explained:  ‘The rule of construction, however, is not a straightjacket.   Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.   It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.’   (63 Cal.2d 740, at p. 746 [48 Cal.Rptr. 172, 408 P.2d 948] (italics added);  accord City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 557 [90 Cal.Rptr. 843] ․)

“Consistent with Estrada's mandate, we must address ‘all pertinent factors' when attempting to divine the legislative purpose.   A wide variety of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’   [Citations.]”  (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, fn. omitted, 128 Cal.Rptr. 427, 546 P.2d 1371.)

Under an “unstraightjacketed” view of Proposition 8's “Truth in Evidence” provision, we are compelled to the conclusion that it was intended to apply to all trials and pretrial hearings held after its adoption regardless of when the underlying criminal offenses are alleged to have occurred.

The most important factor in application of the “Truth in Evidence” portion of Proposition 8 is that it establishes rules for admission of evidence at trial and does not purport to make substantive changes in criminal law or punishment.   In 1965, when the Legislature enacted the Evidence Code, to become effective January 1, 1967 (Stats.1965, ch. 299, p. 1297 et seq.), it specifically provided that the code would be applicable to “proceedings in actions brought on or after” January 1, 1967, and, with certain exceptions, to “further proceedings in actions pending on that date.”  (Evid.Code, § 12, subd. (a).)  Thus, the date of the alleged crime in a criminal action did not affect the rules of evidence to be applied.

It is unfortunate that the drafters of the initiative here did not embody a similar provision.   However, we do not read their silence as suggesting a different intent concerning retroactive application of the measure which repealed a substantial portion of the Evidence Code.   One of the evils perceived by the initiative supporters was the exclusion of relevant evidence in a criminal prosecution, as was suggested in the argument that Proposition 8 would “restore balance to the rules governing the use of evidence against criminals.”  (Ballot Pamp., Proposed Amend. to Cal. Const. with arguments to voters, Primary Elec. (June 8, 1982), arguments in favor of Proposition 8, Mike Curb, Lieutenant Governor, p. 34.)   The Legislative Analyst predicted that if adopted the measure would override to the extent permissible under federal law the exclusion of “evidence obtained through unlawful eavesdropping or wiretapping, or through unlawful searches of persons or property.”  (Id., Analysis by the Legislative Analyst, p. 32.)   We cannot accept the argument that the supporters of the initiative intended less than a general change in the rules of evidence for criminal trials applicable to all proceedings taking place after adoption of the measure.   This conclusion is supported as well by considerations of public policy.   The efficient and proficient operation of our courts of law is dependent upon uniform application of rules of evidence.   The confusion added by a drastic change in the rules of evidence would only be heightened by applying two different sets of rules.   Conceive of the difficulty that would be encountered by a judge hearing evidence concerning a series of criminal acts committed throughout the month of June 1982.   Evidence related to June 7 crimes would be introduced under one set of rules, whereas evidence related to June 9 crimes would be governed by another.   How would the judge rule if the evidence were pertinent to crimes committed on both dates?   We do not believe that the voters intended to place such an intolerable burden on the courts.3

Ex Post Facto Law

The final question is whether Proposition 8's “Truth in Evidence” provision is an invalid ex post facto law.   Both the federal and state constitutions prohibit the adoption of ex post facto laws.  (See U.S. Const., art. I, § 9, cl. 3, and art. I, § 10, cl. 1;  Calif. Const., art. I, § 9.)   Broadly stated, the test for an ex post facto law is that “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.  [Citations.]  ․ [A] law need not impair a ‘vested right’ to violate the ex post facto prohibition.”  (Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, fns. omitted;  see also In re Bray (1979) 97 Cal.App.3d 506, 510, 158 Cal.Rptr. 745;  Ellis v. Department of Motor Vehicles (1942) 51 Cal.App.2d 753, 758, 125 P.2d 521.)   However, an important corollary to the broadly stated test is that “no ex post facto violation occurs if the change effected is merely procedural, and does ‘not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.’  [Citations.]”  (Weaver v. Graham, supra, 450 U.S. 24, at p. 29, fn. 12, 101 S.Ct. 960, at p. 964, fn. 12, 67 L.Ed.2d 17.)

Examples of procedural changes held not to violate the ex post facto rule were collected in People v. Sobiek (1973) 30 Cal.App.3d 458, 473, 106 Cal.Rptr. 519:  “(a) permitting comment by the court;  (b) formerly incompetent witnesses made competent to testify;  (c) granting new rights of appeal to the state;  (d) changes in the statute of limitations;  (e) reception of previously inadmissible evidence;  (f) permitting refixing of sentences;  (g) extending time to pronounce judgment;  (h) eliminating one of the grounds for quashing an indictment.”

More pertinent to this case is a California Supreme Court opinion not relied upon by the Sobiek court, People v. Bradford (1969) 70 Cal.2d 333, 74 Cal.Rptr. 726, 450 P.2d 46.   In Bradford, the defendant's wife was a key prosecution witness whose testimony the defendant sought to exclude under former Code of Civil Procedure section 1881, subdivision 1 (under which a wife could not, with certain exceptions, be called as a witness against her husband without his consent (Stats.1939, ch. 129, § 5, p. 1246)).   The Bradford court rejected the defendant's challenge on the ground that a final decree of divorce was granted before she took the stand.  (Id., at p. 343, 74 Cal.Rptr. 726, 450 P.2d 46.)   However, the court also considered the effect of Evidence Code section 970, which narrowed the scope of the privilege by placing its exercise solely within the election of the testifying spouse.   The court rejected the defendant's argument that application of Evidence Code section 970 to a crime committed before adoption of the Evidence Code violated ex post facto provisions:

“Article I, section 10, of the United States Constitution prohibits any state from passing an ex post facto law.   In one of its earliest cases the Supreme Court included among statutes deemed ex post facto ‘Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’  (Calder v. Bull (1798) [3 U.S. 386], 3 Dall. 386, 390 [1 L.Ed. 648, 650].)  But in subsequent decisions the Supreme Court has departed from the rigorous standard enunciated in Calder.   Thus, in Hopt v. Utah (1884) 110 U.S. 574, 588–589 [28 L.Ed. 262, 268, 4 S.Ct. 202, 209–10], the court rejected the argument that a law permitting felons to testify constituted as to Hopt an ex post facto law:  ‘Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage;  for they do not attach criminality to any act previously done, and which was innocent when done;  nor aggravate any crime theretofore committed;  nor provide a greater punishment therefor than was prescribed at the time of its commission;  nor do they alter the degree, or lessen the amount or measure of the proof which was made necessary to convictions when the crime was committed.’   In Thompson v. Missouri (1898) 171 U.S. 380, 386 [43 L.Ed. 204, 207, 18 S.Ct. 922, 924], the court sustained the prosecution's use upon retrial of a newly enacted statute permitting the introduction into evidence of handwriting exemplars.   In so holding, the court relied on its reasoning in Hopt with an admonition that ‘undue weight’ should not be placed on ‘general expressions' in older opinions ‘that go beyond the questions necessary to be determined’—an oblique reference to the dictum in Calder v. Bull on which defendant relies.   It is unmistakably clear, therefore, that changes in the rules of evidence which broaden the class of persons competent to testify are not deemed ex post facto in operation.  (See also Beazell v. Ohio (1925) 269 U.S. 167, 171 [70 L.Ed. 216, 218, 46 S.Ct. 68].)”  (People v. Bradford, supra, 70 Cal.2d 333 at pp. 343–344, fn. 5, 74 Cal.Rptr. 726, 450 P.2d 46.)

 While the Bradford court's discussion of the ex post facto argument is dicta, we accept it as a valid statement of both federal and state interpretation of the ex post facto provisions.   Applying it to this case, Proposition 8's “Truth in Evidence” provision is not an unlawful ex post facto law because it merely broadens the range of admissible evidence in a criminal case.

 Under Robinson and Belton, the controlling federal precedents, the search was lawful.   Thus, any relevant evidence seized is admissible in petitioner's trial.   The trial court's refusal to suppress evidence must be sustained.

We reach this result most reluctantly.   We are aware that our holding suggests that the police may make a full body and vehicle interior search of any motorist stopped by the police against whom there is an outstanding traffic warrant.   We do not view this prospect with any equanimity.   But we are compelled to this result by the enactment of Proposition 8 and the decisions of the United States Supreme Court.

The alternative writ previously issued is discharged and the petition for a peremptory writ is denied.

I respectfully dissent.

In the words of Justice Frankfurter, dissenting:  “A decision [of Fourth Amendment claim] may turn on whether one gives that Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime.”  (Harris v. United States (1947) 331 U.S. 145, 157, 67 S.Ct. 1098, 1104, 91 L.Ed. 1399.”)

In order to establish a workable rule on those cases litigating the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants, the United States Supreme Court ruled “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.  [¶] ․ [The police] may also examine the contents of any containers found within the passenger compartment, ․” (New York v. Belton (1981) 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, rehg. den. 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036.)

The Belton court took a “giant step” in Fourth Amendment jurisprudence by permitting searches of passenger compartments in the absence of probable cause.   While it appears that the search of Belton's jacket was authorized by the “automobile exception” to the warrant requirement, the court decided upon a “bright line rule” respecting “the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.”  (Belton, supra, 453 U.S. at p. 459, 101 S.Ct. at 2863.)

In Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, rehg. den. 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036, a plurality opinion decided concurrently with Belton on July 1, 1981, overruled in United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, Justice Stevens' dissent views the utility of Belton 's rule with skepticism:  “The rule of constitutional law the Court fashions today therefore potentially applies to every arrest of every occupant of an automobile.

“After the vehicle in which respondent was riding was stopped, the officer smelled marihuana and thereby acquired probable cause to believe that the vehicle contained contraband.   A thorough search of the car was therefore reasonable.   But if there were no reason to believe that anything more than a traffic violation had occurred, I should think it palpably unreasonable to require the driver of a car to open his briefcase or his luggage for inspection by the officer.   The driver so compelled, however, could make no constitutional objection to a decision by the officer to take the driver into custody and thereby obtain justification for a search of the entire interior of the vehicle.   Indeed, under the Court's new rule, the arresting officer may find reason to follow that procedure whenever he sees an interesting looking briefcase or package in a vehicle that has been stopped for a traffic violation.   That decision by a police officer will therefore provide the constitutional predicate for broader vehicle searches than any neutral magistrate could authorize by issuing a warrant.”  (Robbins v. California, supra, 453 U.S. 420, 451–452, 101 S.Ct. 2841, 2859, 69 L.Ed.2d 744, Stevens, J., dissenting.)

The Supreme Court summarizes:  “Justice Stevens, while agreeing with the need for a bright line for cases falling within the automobile exception, rejected the Belton bright line for searches incident to an arrest.   He argued that, because Belton in essence abandons the automobile exception's requirement that police have probable cause to search a passenger compartment, its rule is overbroad and may lead to abuses, such as searching the passenger compartments of mere traffic violators.”  (The Supreme Court, 1980 Term (1981) 95 Harv.L.Rev., at p. 257.)

Today, the potential of Belton of which Justice Stevens anticipated with misgiving is, I fear, realized.   A majority of this court holds in light of Belton that the passenger compartment and containers therein of a lawfully stopped motor vehicle may without probable cause be searched by police incident to the driver's custodial arrest on the authority of an outstanding traffic warrant.   The fact that Officer Reis conducted the automobile search without ever arresting petitioner on the traffic warrant they reason does not preclude a finding of search incident to arrest.  (See Maj. Opn., p. 516.)   Finally, this court's majority holds, albeit “reluctantly,” that the so-called “Truth in Evidence” portion of proposition 8 (Cal. Const., art. I, § 28, subd. (d)) retroactively applied results in the admission of the seized illicit drugs as relevant evidence.*

The majority opinion reasons that the search was not made any more intrusive by Reis' failure to arrest petitioner on the outstanding warrant.  (See Maj. Opn., p. 516.)   I disagree.   I do not see the issue as one of degrees of intrusiveness.   Exceptions to the warrant requirement are born of exigency.   Emergency situations beset the police hourly in which it is impracticable to obtain a search warrant.   The authority to search the person incident to a lawful custodial arrest is based on the need to disarm and to discover evidence.  (See United States v. Robinson (1973) 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427;  Belton, supra, 453 U.S. at p. 461, 101 S.Ct. at 2864.)  Belton, at page 461, 101 S.Ct. at page 2864, recognizes that petitioner had a privacy interest in his six pack container.   And while the expectation of privacy in his automobile is said to be diminished, it is recognized that it exists.  (See South Dakota v. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.)   I dissent from my learned colleagues' view that on this record the search incident to custodial arrest exception removes petitioner's diminished expectation of privacy from the protective shield of unwarranted intrusions afforded by the Fourth Amendment.   True, Belton 's “workable rule” expands the permissible scope of searches incident to arrest of a recent occupant of an automobile to include, within the meaning of Chimel v. California (1969) 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”   However, it is also evident that for this category of cases Belton 's standard is a straight-forward rule, easily applied and predictably enforced (Robinson, supra, 414 U.S. at p. 235, 94 S.Ct. at 476) directing the policeman to first arrest and then search.

The view I hold is not an instance of needless form or procedure over substance.   It is my view that Belton impliedly holds that petitioner's reasonable expectation that his six pack would be “left alone” was not eradicated at law simply because Reis learned that a traffic warrant was outstanding for his arrest, or because he simply detained him on the sidewalk prior to searching.   Manifestly, the arrest is the crucial step determinative of the scope of the policeman's authority and the extent of the arrestee's Fourth Amendment protection.  (Belton, supra, 453 U.S. at p. 459, 101 S.Ct. at 2863.)  “Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.”   (Belton, supra, at p. 461, 101 S.Ct. at 2864, emphasis added.)

My view is that if, as seems obvious, petitioner's “privacy interest” existed at the time of Reis' warrantless search, there being no probable cause therefor, the search was unreasonable per se.  (See Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290;  Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.)

Rawlings v. Kentucky (1980) 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 is inapposite.   It is to be remembered that Reis never has effectuated petitioner's arrest based on the outstanding warrant.   Petitioner's formal arrest is based solely on the contraband seized during what I view as an unreasonable search.   In Rawlings, he was present in a home with one Cox and others when a warrant search of Cox revealed a sizable quantity of drugs.   Spontaneously Rawlings admitted their ownership, thereby providing probable cause for his arrest.   Prior to his formal arrest he was searched, the search revealing $4,500 in cash and a sheathed knife which he sought unsuccessfully to exclude from evidence.   The court upheld “this” search as incident to the arrest to Rawlings' formal arrest.   The court held, “Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.  [Citations].”  (At p. 111, 100 S.Ct. at 2564, fn. omitted.)   Footnote 6 provided:  “The fruits of the search of petitioner's person were, of course, not necessary to support probable cause to arrest petitioner.”  (Id., at p. 111, 100 S.Ct. at 2564, emphasis added.)

Here at bench, clearly, there was no probable cause to arrest petitioner for a narcotic violation until the “illegal” seizure.   To hold that the “probable cause” is supplied by the unserved traffic warrant would impermissibly justify this arrest by what is turned up in an unwarranted search undertaken without probable cause.

I continue to believe that the Supreme Court of the United States thinks that a decisive factor in search cases is the individual's reasonable expectation of privacy.   Arguably, stare decisis does not preclude my view.   An automobile search case, Belton 's specific guidance to police and courts addresses a recurring situation in which probable cause to arrest and search the automobile and/or its occupants develops at the scene of the stop during the investigation.  Belton determined the meaning of Chimel 's principles in that particular and a problematic exigency.   The court has not considered an automobile search in the context of an outstanding traffic warrant as presented at this bench in which there is no exigency impacting Chimel 's principles.   Understandably this record is devoid of any evidence that Reis feared for his safety or of the destruction of evidence.   Generally there is no evidence capable of destruction in connection with a traffic warrant.   And it is still to be presumed that the overwhelming majority of persons detained from traffic violations are law abiding.   Particularly is this presumption valid in the absence of probable cause to suspect the contrary.

Of course, our review of this case is occasioned by the fact that apparently petitioner is one of an alarmingly growing number of persons who have developed an attachment to cocaine and methamphetamines.   Apparently law abiding otherwise, they reside and work in this land, they often own and drive automobiles and allow their traffic tickets to go to warrant.   Marshall, J., dissenting in Rawlings, at page 121, 100 S.Ct. at 2569, states it best:  “Because we are called on to decide whether evidence should be excluded only when a search has been ‘successful,’ it is easy to forget that the standards we announce determine what government conduct is reasonable in searches and seizures directed at persons who turn out to be innocent as well as those who are guilty.   I continue to believe that ungrudging application of the Fourth Amendment is indispensable to preserving the liberties of a democratic society.   Accordingly, I dissent.”

I would allow the peremptory writ to issue.   Accordingly, I do not perceive on this record any need to consider the applicability thereto of “Proposition 8.”

FOOTNOTES

1.   Indeed, the warrant more than authorizes an arrest, for by the warrant “any peace officer ․ [is] commanded forthwith to arrest” the defendant named in the warrant and bring him before the court.   (Pen.Code, § 1427, emphasis added.)   Thus, the peace officer is under a duty to make the arrest.

2.   I am bemused by the dissenting opinion of my colleague.   That dissent quotes extensively from Justice Stevens' dissent in Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, rhg. den. 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036, overruled in United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, wherein Justice Stevens criticized the Belton case rationale elucidated by the majority therein.  (Justice Stevens did concur in the decision in Belton.)The dissent states that Justice Stevens “views the utility of Belton 's rule with skepticism ․ (dis. at p. 520) and that “the potential of Belton of which Justice Stevens anticipated with misgiving is ․ realized [in the decision herein].”  (Id., at p. 521.)Obviously, it would seem, Justice Stevens and I read Belton the same way.That my colleague appears to share Justice Stevens' “skepticism” and “misgiving” may be interesting but it is irrelevant to any decision herein.   Justice Stevens' criticism of Belton is a minority view.   I had understood that as an intermediate appellate court, we are bound to follow the majority opinion of the U.S. Supreme Court without regard to whether that majority opinion is in accord with what we might like the law to be.Of course, had the doctrine of “independent state grounds” not been interred in California by Proposition 8 in the context of the exclusionary rule, as we discuss subsequently in this opinion, Justice Stevens' admonition to look to the state constitutions' equivalent to the Fourth Amendment for surcease from the consequences of Belton would have more force.  (See dis., fn. at p. 521.)

3.   We need not and do not decide whether the electorate intended that the measure be applied in deciding pending appeals from trials conducted prior to June 8, 1982.

FOOTNOTE.   Justice Stevens in footnote 12 on page 451 in Robbins v. California, supra, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, opined in relevant part:  “After today, the driver of a vehicle stopped for a minor traffic violation must look to state law for protection from unreasonable searches.   Such protection may come from two sources.   Statutory law may provide some protection․  Given the incomplete protection afforded by statutory law, drivers in many States will have to persuade state supreme courts to interpret their state constitution's equivalent to the Fourth Amendment to prohibit the unreasonable searches permitted by the Court here.”

FEINBERG, Associate Justice.

BARRY–DEAL, J., concurs in the judgment.